President Declares May As Jewish American Heritage Month

President Obama issued a Proclamation (full text) yesterday declaring May as Jewish American Heritage Month. The Proclamation reads in part:

For thousands of years, the Jewish people have sustained their identity and traditions, persevering in the face of persecution. Through generations of enslavement and years of wandering, through forced segregation and the horrors of the Holocaust, they have maintained their holy covenant and lived according to the Torah. Their pursuit of freedom brought multitudes to our shores, and today our country is the proud home to millions of Jewish Americans. This month, let us honor their tremendous contributions -- as scientists and artists, as activists and entrepreneurs. And let all of us find inspiration in a story that speaks to the universal human experience, with all of its suffering and all of its salvation.

Bill Would Eliminate Constitutional Problems With Parsonage Allowance

As previously reported, an appeal has been taken to the 7th Circuit in Freedom From Religion Foundation v. Lew, in which a Wisconsin federal district court held that the tax code provision excluding a minister's parsonage allowance from gross income violates the Establishment Clause because it benefits religious persons but not others. The appeal has drawn a number of amicus briefs from religious organizations across the spectrum. (Links to briefs and other documents.) On Monday, Louisiana Representative Bill Cassidy introduced a bill into Congress which, if enacted, would presumably remove the constitutional problems with the parsonage allowance. (Cassidy press release.)  H.R. 4493 provides that Section 107 of the Internal Revenue Code that grants the parsonage allowance to any "minister of the gospel"-- a term already interpreted by the courts to include non-Christian clergy as well-- is amended to add:

For purposes of this section, the term `minister of the gospel' includes any duly recognized official of a religious, spiritual, moral, or ethical organization (whether theistic or not).

So far, the bill has no co-sponsors and hearings on it have not been scheduled.  The progress (if any) of the bill through Congress can be followed here. [Thanks to Robert Baty for the lead.]

Suit Challenges Ohio's Refusal To Allow Same-Sex Marriages

In the wake of a federal district court ruling two weeks ago that Ohio's refusal to recognize same-sex marriages performed elsewhere is unconstitutional (see prior posting), a new federal lawsuit was filed yesterday challenging Ohio's ban on issuing marriage licenses to same-sex couples who wish to wed in Ohio.  The complaint (full text) in Gibson v. Himes, (SD OH, filed 4/30/2014), contends:

Ohio Rev. Code § 3101.01 and OH Const. Art. XV, §11 violate fundamental liberties that are protected by the Freedom of Association Clause of the First Amendment, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment on their face.

Cincinnati Enquirer reports on the filing of the lawsuit.

Suit Voluntarily Dismissed After School District Changes Rule On Distribution of Religious Material

ADF announced yesterday that it has voluntarily dismissed it lawsuit in K.R. v. Unified School District No. 204, (D KA, April 29, 2014) (full text of Notice of Voluntary Dismissal) after the school district removed its restriction on distribution of religious material.  The suit challenged school district rules that originally permitted students to post information and hand out flyers during non-instructional time, except for religious material. (See prior posting.)

Kenyan President Signs New Marriage Act, Allows Polygamy

BBC News and Jurist report that in Kenya, President Uhuru Kenyatta has signed into law the controversial Marriage Act 2014. The new law requires that all marriages be registered and provides that a woman is entitled to 50% of the property acquired during marriage. However the greatest attention has been given to provisions that allow polygamous marriages. Men may marry as many women as they wish, without consulting their current wives. Christian leaders have opposed the law.

California Court Refuses To Allow Sikh Juror To Wear Kirpan

In Yuba City, California, members of the Sikh community protested yesterday when officials refused to allow Gursant Singh to enter the Sutter County Courthouse to report for jury duty. Singh has been unable to convince authorities to allow him to wear his kirpan (a religious dagger with a 5 inch blade) in the courthouse.  CBS13 reports that court officials insist on enforcing their no-weapons policy to ban the traditional religious symbol. It is unclear whether Singh will be penalized for not appearing for jury duty.

Pentagon Chaplain Hosts First Ever Sikh Program

Huffington Post reports that the first ever program at the Pentagon to recognize the Sikh faith was held last Friday. Hosted by the Pentagon Chaplain, the program  celebrated Vaisakhi, described by Valarie Kaur who spoke at the program as a celebration of "the founding of the Sikh community as the Khalsa, a spiritual sister and brotherhood."

Inmate With Multiple Wives Can Move Ahead With RLUIPA Challenge To Conjugal Visit Rule

While prisoner lawsuits challenging limits on conjugal visits are not particularly unusual, the challenge involved in Thomas v. Corbett, (PA Commonwealth Ct., April 29, 2014) presents unusual facts.  As described by the court:

Thomas raises several claims in the Complaint relating to DOC’s conjugal visit policy, which precludes conjugal visits for all inmates. Thomas avers that his religion requires him to marry and, in fact, to have multiple wives.  Thomas avers that DOC’s policy concerning visits from spouses precludes him from enjoying conjugal visits with his wives. Thomas avers that this policy has a detrimental effect on the status of his marriages, because his wives are threatening to divorce him under Islamic religious rules if they are unable to have intercourse with him.

In the case, the 3-judge Pennsylvania Commonwealth Court  panel refused to dismiss plaintiff's  RLUIPA challenge to the conjugal visit ban at this early stage of the proceedings.  It is not enough for the government to merely allege that it has a compelling interest. The court also allowed plaintiff to move forward with a portion of his challenge to the prison's ban on prayer oil. PennLive reports on the decision.

Obama's Statement On Yom HaShoah

Yesterday the White House released a statement (full text) from President Obama on Yom HaShoah (Holocaust Remembrance Day). The statement reads in part:

On this Yom HaShoah, I join people of all faiths in the United Sates, in the State of Israel, and around the world in remembering the six million Jews – innocent men, women and children – who were senselessly murdered during the Holocaust, as well as all the victims of Nazi brutality and violence.... [L]et us recommit ourselves to the task of remembrance, and to always oppose anti-Semitism wherever it takes root. 

White House Statement On Canonization of Popes John XXIII and John Paul II

Yesterday the White House issued a statement (full text) from President Obama celebrating Sunday's canonization of Pope John XXIII and Pope John Paul II. The statement reads in part:

We celebrate these Saints and the leadership of His Holiness Pope Francis, and we look forward to continuing to work with Pope Francis and Catholics around the world to advance peace and justice for all people.

Georgian Orthodox Patriarch Objects To Proposed Anti-Discrimination Law That Includes Sexual Orientation and Gender Identity

The nation of Georgia has entered a Visa Liberalization Action Plan which envisions a number of reforms in order for the country to obtain visa-free status in the European Union.  As reported by Civl.ge, one of those reforms involves adoption of anti-discrimination legislation. Parliament passed the bill on its first reading on April 17. It is coming up this week for its second reading.  Yesterday Georgian Orthodox Church Patriarch Ilia II issued a statement objecting to the inclusion in the bill of sexual orientation and gender identity as prohibited grounds for discrimination. The statement, asking the government to delay action on the bill, says in part:

Proceeding from God’s commandments, believers consider non-traditional sexual relations to be a deadly sin, and rightly so, and the anti-discrimination bill in its present form is considered to be a propaganda and legalization of this sin.

Church Synod and Various Clergy Sue Claiming North Carolina Same-Sex Marriage Ban Infringes Their Free Exercise Rights

A federal lawsuit with a different twist challenging North Carolina's ban on same-sex marriage was filed yesterday. In addition to same-sex couples, the plaintiffs are a religious denomination-- the United Church of Christ-- and individual clergy from UCC, Lutheran, Baptist, Unitarian-Universalist, and Reform Jewish congregations. The complaint (full text) in General Synod of the United Church of Christ v. Cooper, (WD NC, filed 4/28/2014), claims, among other things, that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony, and that this infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage. The same-sex couples also assert due process and equal protection claims.  UCC has issued a press release and created a website with additional information on the case. The Charlotte Observer also reports on the case. [Thanks to Don Clark for the lead.]

New Survey of Anti-Semitism Has Grim Narrative

Yesterday, Tel Aviv University's Kantor Center (along with the European Jewish Congress) announced the release of a new report Worldwide Report on Antisemitism 2013. (The report is also listed in my posting earlier today of Recent Articles of Interest.) The Kantor Center's report is one of several similar surveys including the European Union's Discrimination and hate crime against Jews in EU Member States (see prior posting) and the ADL's 2013 Annual Audit of Antisemitic Incidents (see prior posting). The Kantor Center's report appears to be more conservative than others in its methodology for counting incidents, finding:

554 registered violent antisemitic acts perpetrated with weapons or without, by arson, vandalism or direct threats against Jewish persons or institutions such as synagogues, community centers, schools, cemeteries, monuments as well as private property

However its narrative appears much grimmer:

Anti-Zionism, which is rampant in the west, cannot explain the present level of antisemitism, nor can it be explained by the rise of right-wing extremist parties (each having its own wider agenda), or by the economic crisis of 2008 (which is no longer ‘news’). No Middle East event tied to the Israeli-Palestinian conflict occurred in 2013, nor can elevated data of antisemitic incidents in this year be attributed to hate-generated hordes of admirers sparked by the attack on the Toulouse Jewish school in March 2012. In short, what we witness in 2013 is ‘net antisemitism’ per se.

Supreme Court Denies Review In Case of Disciplinary Sanctions On Former Kansas AG For Abortion Clinic Investigations

The Supreme Court today denied certiorari in Kline v. Kansas Disciplinary Administrator, (Docket No. 13-1104, cert. denied 4/28/2014) (Order List). In the case, the Kansas Supreme Court imposed an indefinite suspension of the right to practice law on former state attorney general Phillip Kline for 11 violations of the rules of professional conduct in his investigation of abortion clinics while he served as Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. (See prior posting.)

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Recent Articles of Interest

From SSRN:

• Asma Mushtaq, Akseer Ahmad Abbasi, Maroona Nazir, & Shagufta Omar, Inheritance, (Inheritance, Women Aid Trust, January 2014).
• Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, (Cornell International Law Journal, Vol. 48, 2015).
• Robert W. McGee, Attitudes on the Ethics of Tax Evasion: A Survey of Philosophy Professors, (April 14, 2014).
• Robert W. McGee, Gender and the Ethics of Tax Evasion: An Empirical Study of 82 Countries, (April 14, 2014).
• Robert W. McGee & Geoff A. Goldman, Ethics and Tax Evasion: A Survey of South African Opinion, (April 14, 2014).
• Nelson Tebbe, Associations and the Constitution: Four Questions About Four Freedoms, (North Carolina Law Review, Vol. 92, No. 3, 2014).
• Paul Horwitz, More 'Vitiating Paradoxes': A Reply to Steven D. Smith — And Smith, (Pepperdine Law Review, Forthcoming).
• Teresa Hernandez & Robert W. McGee, The Ethical Perceptions of Bribe Taking in Four Muslim Countries, (Journal of Accounting, Ethics and Public Policy, Vol. 15, No. 1, 2014).

From SmartCILP and elsewhere:

• Sarah Barringer Gordon, The First Disestablishment: Limits On Church Power and Property Before the Civil War, 162 University of Pennsylvania Law Review 307-372 (2014).
• Lynn M. Daggett, "Minor Adjustments" and Other Not-So-Minor Obligations: Section 504, Private Religious K-12 Schools, and Students With Disabilities, 52 University of Louisville Law Review 301-331 (2014).
• Religion and Family Planning Under the U.S. Constitution. Articles by Colleen Connell, Lorie Chaiten, Richard Muniz, Steven H. Resnicoff and Tom Judge. 15 DePaul Journal of Health Care Law 1-44 (2013).
• Dina Porat (ed.), Antisemitism Worldwide 2013, European Jewish Congress, April 27, 2014.

Recent Prisoner Free Exercise Cases

In Native American Council of Tribes v. Weber, (8th Cir., April 25, 2014), the 8th Circuit affirmed a district court’s conclusion that South Dakota correctional officials violated RLUIPA by banning Native American inmates’ use of tobacco for religious purposes. Defendants failed to showthat the tobacco ban is the least restrictive means of furthering their compelling government interest.

In Hoeck v. Timme, 2014 U.S. Dist. LEXIS 55059 (D CO, April 21, 2014), a Colorado federal district court found no merit in an inmate's challenge to his conviction in a habeas proceeding complaining that his court appointed counsel would only meet with him between Friday sunset and Saturday sunset, the Sabbath for petitioner.

In Merrick v. Ryan, 2014 U.S. Dist. LEXIS 55738 ( AZ, April 17, 2014), an Arizona federal district court remanded to state court a suit in which an inmate, under his complaint as amended, claimed that the denial of religious materials violated Arizona's Free Exercise of Religion Act.  In his amended complaint he removed all references to federal law.

In Gunderson v. Pharis, 2014 U.S. Dist. LEXIS 55431 (ND IL, April 22, 2014), an Illinois federal district court dismissed on the basis of Younger abstention claims of plaintiff, a Hindu, that he was denied conjugal visits and was given inadequate time for yoga, all of which burdened his religious practices.  Plaintiff is being held at a mental health facility under an ongoing treatment plan after being found not guilty by reason of insanity. The court also dismissed on the merits plaintiffs complaint that he did not have access to an appropriate Hindu spiritual leader.

In Dodds v. Quintero, 2014 U.S. Dist. LEXIS 56487 (D CO, April 23, 2014), a Colorado federal district court dismissed discrimination and free exercise claims by an African-American inmate who practices Judaism against a sheriff's deputy who allegedly greeted plaintiff with the words "Asalam Walakim" while plaintiff was waiting for his kosher breakfast.

In Pouncil v. Tilton, 2014 U.S. Dist. LEXIS 56786 (ED CA, April 22, 2014), a California federal district court permitted a Muslim inmate to move forward with his claim that his rights under RLUIPA were violated by a rule that barred inmates serving a sentence of life without possibility of parole from having conjugal visits.

In George v. County of Westchester, 2014 U.S. Dist. LEXIS 57185 (SD NY, April 10, 2014), a New York federal district court permitted a Jewish inmate to move ahead with  his complaint of denial of Jewish congregate religious services and inadequate hot water and microwave oven for preparation of his kosher food.

In Payne v. Duncan, 2014 U.S. Dist. LEXIS 57335 (MD PA, April 23, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that his free exercise rights were infringed when his books were confiscated and discarded, preventing him from studying his religion.

In JCG v. Ercole, 2014 U.S. Dist. LEXIS 57417 (SD NY, April 24, 2014), a New York federal magistrate judge recommended that a Messianic Jewish inmate be permitted to move forward with his complaint that the prison's Jewish chaplain refused to approve kosher meals for him or his attendance at Jewish religious services and Jewish holiday celebrations.

New Law Aims To Increase Availability of Kosher and Halal Food In Emergency Assistance Programs

AP in a report today calls attention to a little-noticed provision in the Agriculture Act of 2014 that was signed into law by the President on Feb. 7.  Sec. 4207 of the Act provides for increased purchase of kosher and halal food for the government's emergency food assistance program.  The Section provides:

As soon as practicable after the date of enactment of this subsection, the Secretary shall finalize and implement a plan— 

(1) to increase the purchase of Kosher and Halal food from food manufacturers with a Kosher or Halal certification to carry out the program established under [the Emergency Food Assistance Act] if the Kosher and Halal food purchased is cost neutral as compared to food that is not from food manufacturers with a Kosher or Halal certification; and 

(2) to modify the labeling of the commodities list used to carry out the program in a manner that enables Kosher and Halal distribution entities to identify which commodities to obtain from local food banks.

Court Issues Preliminary Injunction and Halts Other Rulings in Non-Profit's ACA Challenge Until Supreme Court Decides Hobby Lobby

In Fellowship of Catholic Students v. Sebelius, (D CO, April 23, 2014), a Colorado federal district court issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a non-profit Catholic student organization. The court entered the order after the government failed to respond to the plaintiff's motion for a preliminary injunction. The court also stayed discovery and any ruling on plaintiff's summary judgment motion until after the U.S. Supreme Court issues its decision in the Hobby Lobby case. (Full text of orders.) CNS reports on the decision. (See prior related posting.)

Article Recounts Continued Lack of Religious Freedom In Egypt

Today's New York Times carried a front-page article titled Vow of Freedom of Religion Goes Unkept in Egypt. Here are some excerpts:

The architects of the military takeover in Egypt promised a new era of tolerance and pluralism when they deposed President Mohamed Morsi of the Muslim Brotherhood last summer.

Nine months later, though, Egypt’s freethinkers and religious minorities are still waiting for the new leadership to deliver on that promise. Having suppressed Mr. Morsi’s Islamist supporters, the new military-backed government has fallen back into patterns of sectarianism that have prevailed here for decades.

Prosecutors continue to jail Coptic Christians, Shiite Muslims and atheists on charges of contempt of religion..... The military leader behind the takeover, Abdul-Fattah el-Sisi, often appeals to the Muslim majority in a language of shared piety....

... But the complaints about continued sectarianism have not deterred church leaders from firmly supporting Mr. Sisi as their protector against worse treatment by the Muslim majority.